Stop SOPA & PIPA - No New Excess Copyright blog posts on January 18, 2011

FACT, FICTION, AND FALSEHOODS ABOUT THE “F WORD” IN COPYRIGHT LAW

From the January 16, 2012 edition of the  Hill Times:

FACT, FICTION, AND FALSEHOODS ABOUT THE “F WORD” IN 

COPYRIGHT LAW

We must confront the “F word” in copyright law.  It is not a dirty word.  To the contrary, the Supreme Court of Canada went to great lengths in its landmark 2004 CCH v. LSUC decision to clearly describe the meaning of this word in the context of what it called “users’ rights”. That case involved the right of profit-seeking lawyers to engage in research on behalf of even their commercial clients.  The CCH decision - arguably the Magna Carta of Canadian copyright law – was, in fact, all about the “F word”. The word, of course, is “fair”, as in “fair dealing” or “fair use”, as the Americans call their “kissing cousin” of our Canadian doctrine. Unfortunately, many who should relish and rely upon the word are afraid to do so or to even talk about it because they don’t understand, or haven’t been accurately told, what the word actually means.

A particularly disconcerting but hardly isolated example of this fear of “fair” dealing has recently come to light.  Here is what the website of McMaster University, one of Canada’s more prominent research institutions, says on its FAQ concerning “Copyright in the Library – Course Reserves”:

The AUCC [Association of University and Colleges of Canada] Fair Dealing Policy states that library reserve must not substitute for the purchase of books, coursepacks or other published materials, which means that textbooks cannot be placed on reserve.  (Emphasis added) 

The emphasized portion is simply wrong. Let’s be clear.  It is perfectly legal under copyright law to put any printed book on reserve for the simple reason that doing so involves no act of reproduction or anything else mentioned in the Copyright Act.  Unfortunately, it seems that other university libraries also question whether they can put a required reading textbook or indeed ANY “textbook” on reserve.

It does not matter if the books are required reading. In fact, that is often the very reason why books are placed on reserve.  It does not matter whether the book is a “textbook”, a “treatise”, a “reference”, simply an interesting book or falls into more than one of these categories.   A book is a book. The professor requesting the “reserve” treatment and the librarian facilitating it are entitled to presume that the book will not be copied illegally.

Sadly, such incorrect views about library reserves are just the tip of an iceberg of other fictions in circulation concerning fair dealing and other users’ right. This particular misunderstanding does not come from any Copyright Board or court decision. Nor has the issue of putting printed books on reserve arisen in any of the cases currently before Canada’s Supreme Court.  In fact, it does even not come from the AUCC policy, which is widely regarded as being much too restrictive, that McMaster purports to rely upon.  The AUCC FAQ actually state that “The fair dealing policy does not apply to placing an original work on library reserve because no reprographic or electronic copy is made.  There is nothing that would prevent putting the original work on library reserve.”  It would seem that McMaster’s flawed reserve policy may have come from Access Copyright, the powerful reprography collective empowered by Canada’s Copyright Board. Access Copyright misstates on its website that:

The AUCC fair dealing policy clearly states that: …

Required course readings cannot be put on library reserve.

One wonders why this false statement by Access Copyright remains posted and, apparently, not contradicted.  But while the AUCC got the “reserve” issue right, at least for “original works” (presumably meaning printed books, journals, etc.), its fair dealing policy may, however, be causing real problems in several other ways. Questions have arisen as to whether its provisions are unnecessarily arbitrary and limited.  It is also regrettable that, rather than educating its members about their rights and encouraging them to exercise their freedoms to their fullest extent, the AUCC imposes restrictions that could arguably result in a gratuitous concession of key users’ rights confirmed in the 2004 CCH v. LSUC decision. Above all, there is serious concern that these guidelines could become the new “normal” in Canada and thereby be adopted by the Copyright Board and even the courts as indicative of what constitutes “fair” dealing.

Another recent example of a faulty position based upon a misunderstanding of users’ rights and fair dealing was the written policy of Library and Archives Canada that required the author of a thesis to obtain written permission from third party copyright owners for the inclusion of any excerpt from any copyrighted work.  This policy was apparently oblivious to the fact that the quotation of a less than a “substantial part” of a copyrighted work requires no permission and that even a substantial part may be quoted without permission if it falls within “fair dealing”.  Several universities were imposing this incorrect policy. I am pleased that the error seems to have been rectified following its exposure on my blog.

One is hearing time and again from conscientious academics, students, and the librarians who serve them that they are being seriously impeded in their pursuit of teaching, learning and innovation by a made in Canada copyright chill. In order to lessen this chill, educators need sound understanding of their freedoms and of what “fair” means in copyright law.  The Supreme Court has clarified in the CCH decision that exceptions to copyright infringement are “perhaps more properly understood as users’ rights”, that “they must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained”, that allowable fair dealing purposes “should not be given a restrictive interpretation or this could result in the undue restriction of users’ rights, and that “User rights are not just loopholes”.  Users need to be encouraged to use their rights, and not made afraid to do so. “Fair” dealing in copyright is about freedom, and not about fear. It should not be an “F word”.

Howard Knopf

© Howard Knopf 2012

Howard Knopf is Counsel to Macera & Jarzyna, LLP in Ottawa, Canada. He writes a blog on copyright issues called “Excess Copyright”. The views expressed herein a solely his own and are not legal advice.

HK

PS - There are several other interesting pieces on copyright in today's Hill Times, which has a special Policy Briefing on Media & Copyright.


PS - Yesterday, I received the following email from Anne Pottier of McMaster,  which I am posting with her permission. The FAQ in question has now been updated.

"Anne Pottier" 17/01/2012 3:56 pm 

Good afternoon Mr Knopf

The following entry in your blog was brought to my attention yesterday -  http://excesscopyright.blogspot.com/2012/01/fact-fiction-and-falsehoods-about-f.html

We have a Copyright Working Group which when working on the implementation of the AUCC Fair Dealing Policy had interpreted the clause 16. c) "the use of library reserve must not substitute for the purchase of books, course packs or other published materials" too narrowly, failing to take full note of the introductory statement which reads:

   15. This policy applies to paper copies made by a staff or faculty member for library reserve, and to electronic copies made by a staff member of the university library or other administrative unit from Published Works for a student of the university.

Once we realized this, we revised our Copyright in the Library - Reserve (FAQ) right away, on September 22nd.  I was surprised to see that this information has not been updated on our university's copyright website. I have contacted the person responsible for this website asking that this information be updated as soon as possible.

We updated our library information and course reserves pages at the time, and sent email blasts to our professors and instructors.

   I am sorry this information did not get updated right away, and that this has caused confusion beyond our own institution.

   Please let me know if anything else is unclear.

   Thanks

   Anne

   Anne Pottier
   Associate University Librarian, Library Services

   

Crown Immunity Argument Rejected by Copyright Board in Access Copyright's Proposed $24 per Provincial Government Employee Tariff

As Ariel Katz was quick to note, the Copyright Board has issued its decision on the crown immunity issue that arose in Access Copyright's proposed tariff that would impose a tariff of $24 per FTE provincial government employee. Ariel's blog includes an interesting comment from Andrew Martin, presumably the same Andrew Martin who was the CEO of  Access Copyright (then CanCopy) for many years.

The crown immunity issue was argued as a preliminary issue last fall. The decision released on January 5, 2012 provides only the following indication of what reasoning the Board may have in mind: 

The Objectors’ claim for crown immunity is dismissed by reason that the Act binds the Crown by necessary implication

Reasons are to follow. We await those  reasons with interest, as well as learning whether there will be an attempt at judicial review.

The submissions of the parties are available here, here, here,  and here.

HK

Canada #9 Beats Out Germnay, UK, Japan & USA (#18) in 2011 IPRI Property Rights Ranking

The well known and highly influential US conservative think tank -  Grover Norquist's Americans for Tax Reform  - has a "project" called the "Property Rights Alliance". According to Declan McCullagh at CNET:

The Property Rights Alliance, a project of ATR, lists combating "piracy and counterfeiting of intellectual property" in its mission statement. Its annual property rights index scores nations on variables including how "effective" each is in eliminating "copyright piracy."

The 2011 Report of the Property Rights Alliance - the International Property Rights Index ("IPRI") - ranks Canada at #9 overall re protection of physical and intellectual property. Canada is ahead of the UK, Germany, Japan and the the USA (#18) amongst others. Here's the top 20:

SWEDEN 1
FINLAND 1
SINGAPORE 3
SWITZERLAND 4
NORWAY 4
NEW ZEALAND 4
LUXEMBOURG 4
DENMARK 8
NETHERLANDS 9
CANADA 9
AUSTRALIA 9
AUSTRIA 12
HONG KONG 13
GERMANY 13
UNITED KINGDOM 15
JAPAN 16
IRELAND 16
UNITED STATES 18
BELGIUM 18
FRANCE 20

As for Canada, the report says:

Canada’s IPRI remained the same after two
previous years of slight increases. There is little
to complain about however, as Canada remains
the highest ranked country in both its
region and the western hemisphere. (emphasis added)

This is very good news and Canada should be proud. There's also an interesting case study by Joseph Quesnel entitled "Creating Indigenous Property Rights: The Nisga’a Landholding Transition Act".

The full IPRI report is available  here.

HK

Trans-Pacific Partnership ("TPP") Agreement - Consultation Deadline of February 14, 2011

World Copyright Terms (created by Balfour Smith of Duke University)

The Canadian government is asking for submissions on the proposed TPP agreement by February 14, 2012.

One of the identified items for consultation is:

• Views and experiences with the protection of intellectual property rights. 

According to Sean Flynn of American University's Washington College of law, preliminary analysis of "leaked" documents indicate that the USA will be seeking:

• a life + 70 year copyright term, 
• to abandon the access to medicines flexibilities of the 2007 New Trade Deal and the U.S.-Peru Free Trade Agreement
• to create a new international legal requirement to provide copyright owners an exclusive right to block parallel trade of  copyrighted works.

See Sean Flynn's analysis here and here. If Sean is right, the USA will be seeking to impose a regime that goes far beyond  Canada's NAFTA and WTO obligations and even way beyond still controversial IP and trade agreements not yet ratified, such as the 1996 WIPO treaties and ACTA.

This sounds like policy shopping on a grand scale.

The DFAIT document is available here.

Remember - the deadline for comments if February 14, 2012. You may also wish to to include with your submission a  lovely Valentine. 

Wikipedia

HK

Digest of United States Practice in International Law 2010

World Copyright Terms (created by Balfour Smith of Duke University)
(click on map to expand)

The Annual United States Digest of United States Practice in International Law 2010 is available here.

It covers everything from softwood to software. It's more than 900 pages long.

Canada gets mentioned about 70 times.

Search away....

HK

PS - the above map shows the success of the US bilateral strategy of promoting the life + 70 "Mickey Mouse" copyright term.

Public Domain Day 2012 - Welcome to Jung, Jelly Roll Morton, Joyce and Grandma Moses

 

 

 Beautiful World by Grandma Moses (1860-1961)

Today is the day that many works enter the public domain, according to all kinds of very complicated rules and despite the efforts of the likes of The Walt Disney Company and the Estate of Lucy Maud Montgomery to the the contrary. I continue to be pleased that Jack Granatstein, myself, and others were successful in spotting, trapping, and getting rid of the "Mouse in the House" that appeared to be the first stage of a Mickey Mouse Copyright Term Extension movement in Canada. Our 2003 pre-Facebook campaign led to the defeat of the harmful aspects of certain otherwise useful legislation in which the mouse was hiding that would have extended copyright in the unpublished works of LMM, and other important figures such as Prime Ministers Laurier, Borden, and Bennett, as well as Stephen Leacock and Grey Owl for up to 34 years.


The determination of when a work enters the public domain is relatively straightforward in Canada, at least in comparison with the USA. For the latter, see charts by:

• Gasaway
• Hirtle 
• Benedict O'Mahoney 

Moreover, there is a case called Golan v. Holder  under reserve in the US Supreme Court that will determine the validity of US legislation restoring copyright in certain classes of works that have already entered the public domain, including works by Stravinsky and H.G. Wells for example. We should know the outcome by June of this year.

Not only is the determination of when a work enters the public domain in each country very difficult in many cases. The increasing and increasingly dangerous trend towards extraterritorial assertion of copyright law makes it increasingly risky to make available online works that are in the public domain in the country where there the site is hosted but are still protected in other countries.  Uncertainty and some heavy handed threats have impeded the efforts of some very useful websites, such as the IMSLP Petrucci Music Library that have sought to make countless important books and musical scores that in the public domain in Canada and most other countries apart from the USA and EU members as widely available as possible.

I continue to think that harmonization of the public domain term would, in principle, be a useful exercise for WIPO,  were it not for the fact that this would almost certaintly involve eneomrous pressure to harmonize to the highest common denominator of life + 70 as found in the EU and USA. Indeed, the USA may have inflicted  irreversible and irreparable harm on itself with with its unwise term extension, due to its Fifth Amendment constitutional provision that may make the taking back of such an extension effectively impossible, at least with respect to any works covered by the life plus 70 term under a law that was validly enacted.

While one hears that the Europeans may not go to the wall on life + 70 in the Canada - EU (CETA) trade talks, one must be wary of the Americans in the Trans-Pacific Partnership (TPP) agreement negotiations in which Canada has agreed to participate. Whether Canada's willingness to negotiate in the TPP forum with change the dynamic of the CETA talks could be interesting.

Anyway, here is the indomitable Wallace J. McClean's annual Public Domain Day liberation post. According to Mr. McLean, Canadians will now have full access to a trove of previously published works including by the following creators whom  he has seen fit to highlight, according to his eclectic taste:

• Canadian novelist Mazo de la Roche
• British politician and Newfoundland Commissioner Sir John Hope Simpson
• American author Ernest Hemingway
• Swiss psychiatrist Carl Jung
• Swedish diplomat and author Dag Hammarskjöld
• Austrian physicist Erwin Schrödinger
• American writer and cartoonist James Thurber
• American artist Grandma Moses
• American playwright Moss Hart
• American artist Max Weber
• Italian mathematician Beppo Levi
• Serbian poet Branko Miljković
• Nazi war criminal Kurt Meyer (published his self-serving memoir “Grenadiere” in 1957)

Other homages to PD day in the life + 70 regime  can be found  on the 1709 Blog here re James Joyce  and here re Jelly Roll Morton. Canadians, of course, welcomed them into the public domain 20 years ago.

Happy PD day and Happy New Year.

HK